59 Ky. 288 | Ky. Ct. App. | 1859
delivered the opinion oe the court:
This action was brought to recover the possession of several pieces of land, which all adjoined each other, and, in fact, constituted but one tract. Four persons were made defendants, and were alleged to be in the possession of the land, and to withhold it from the plaintiffs.
It is shown by the pleadings of the defendants, and the evi dence in the cause, that the defendants did not have a joint possession of the land sued for, but that each one held and claimed a distinct and separate parcel thereof. On this state of case, a question has been made as to the right of the plaintiffs to maintain a joint action against the defendants.
The objections which are made to the title of the plaintiffs may be disposed of in a very few words. All the parties to the action, defendants as well as plaintiffs, claim the land in controversy under the title of Nancy Ashby. The defendants having, therefore, acquired the possession of the land, and claiming to hold it under her title, are not in an attitude to dispute it. They are estopped to deny the validity of her title, and it was not incumbent on the plaintiffs to show that she had any title, but only to show that the defendants obtained the possession of the land, and claimed to hold it under her title, which was virtually admitted by the defendants in their answers.
It, however, devolved upon the plaintiffs to make it appear that they were themselves invested with the title of Nancy Ashby. To do this, they had to prove that the decretal sale,
The death of Nancy Ashby was admitted by the defendants in their answer. They did not, however, admit, but denied, that the plaintiffs were her sole heirs at law, The proof of heirship was very indefinite and unsatisfactory, the witness who deposed on the subject stating that Nancy Ashby left eleven children, and that the plaintiffs and F. M. Ashby were her children and heirs. Now, as there were fifteen or sixteen plaintiffs, they could not all of them have been her children, or she must have had more than eleven children, so that there was an evident defect in the proof on this point.
The validity of the sale under which the defendants claim, depends upon the fact whether Nancy Ashby had a faviily at the time the order was made directing the land to be sold. She had been found to be a lunatic, and the order of sale was made in the year 1837, upon the petition of her committee, in which it was stated that a sale of the land was necessary for her support, as all her other estate was exhausted.
By the act of 1831, (2 Slat. Law, p. 802,) which was in force at the time the sale was ordered, it was provided that the court should in no case order the sale of any estate belonging to a lunatic who had a family.
The testimony on this point was also very indefinite and unsatisfactory, the witness who deposed on the subject merely stating that she had a family until she became insane, and for some months afterwards. Of whom the family consisted, or what the witness meant by the word “ family,” he did not state. Neither did he state that she had a family at the time the order of sale was made.
Whether she had such a family, as contemplated by the statute, was not a question for the witness to determine. He should have stated the facts upon which he based his opinion that she had a family, and the law would have determined whether or not his opinion was correct.
Notwithstanding, however, the deficiency of proof with regard to these two points — both of which were essential to the
Wherefore, the judgment is reversed, and cause remanded for a new trial and further proceedings not inconsistent with this opinion.